1
EXHIBIT 10.14
[INTERVOICE, INC. LETTERHEAD]
January 31, 1997
Xx. Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Dear Xxxx:
To take into account certain requests made by you and your attorney,
Xxxxx X. Xxxxxx, this letter replaces my letter of December 5, 1996, regarding
termination of your employment with InterVoice, Inc. ("InterVoice"). The terms
set forth below constitute InterVoice's offer and, by your signature, your
acceptance, of this Separation Agreement (the "Agreement"). On behalf of
InterVoice, I want to express my appreciation for your past years of service
and contributions, and wish you success in your future endeavors.
1. Termination of Employment. Your employment with InterVoice
terminated effective with the close of business on December 5, 1996 (the
"Separation Date"). You were relieved as of that time of further duties in your
former position of Senior Vice President, Corporate Marketing, and your office
as a Vice President was concurrently vacated.
2. Salary and Benefits. In accordance with InterVoice's existing
policies or at its discretion, you have received or will receive the following
payments and benefits pursuant to your employment with InterVoice and your
participation in InterVoice's benefit plans:
(a) Payment of your regular base salary through December 5, 1996,
less all legal deductions;
(b) Payment of accrued and unused vacation leave benefits as of
December 5, 1996, if any, less all legal deductions;
(c) Two weeks' wages in lieu of notice, amounting to $6,290.06;
and
(d) Present or future payment or other entitlement, in accordance
with the terms of the applicable plan or other benefit, of any
benefits to which you have vested entitlement under the terms
of employee benefit plans established by InterVoice.
2
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 2
The amounts paid in accordance with subparagraphs (a), (b), (c), and
(d) of this paragraph are gross amounts, subject to lawful deductions,
including any deductions you have previously authorized.
Your regular paid group health insurance benefits continued through
December 31, 1996. You are entitled at your option to continue your group
health insurance coverage at your own expense, in accordance with applicable
law. Please complete a COBRA election form, which will be furnished to you, and
return it to Xx. Xxxxx Xxxxxxx, Human Resources Department, InterVoice, Inc.,
00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, at your earliest convenience, in
accordance with the terms of the election form, if you elect to continue such
insurance coverage.
InterVoice will settle all authorized reimbursable business expenses,
if any, based on your submission of appropriate expense reports along with the
required receipts and documenting information.
3. Special Separation Compensation. Contingent upon your
acceptance of the terms of this Agreement and in consideration of your
undertakings set forth in Paragraphs 6 (General Release), 7 (Confidentiality,
Nonprosecution, Nondisparagement, and Cooperation), 8 (Agreement Not to Seek
Reemployment), and 9 (Agreement Regarding Solicitation of Employees, Customers,
and Suppliers) of this Agreement, InterVoice offers you, in addition to the pay
and benefits you will receive pursuant to Paragraph 2, the following Special
Separation Compensation:
(a) Payment of wages in lieu of notice in the total amount of
$81,770.78, equivalent to six months' salary at your regular
rate. This amount is inclusive of the amount of wages in lieu
of notice specified in Paragraph 2(c) above, and is a gross
amount, subject to lawful deductions. Payment of the unpaid
portion of such amount will be made in lump sum within six
days after the Effective Date of this Agreement as specified
in Paragraph 15.
(b) Payment of Q4 quarterly bonus on the same basis as if you had
(i) remained employed throughout InterVoice's current fourth
fiscal quarter ending February 28, 1997, and (ii) fully met
your performance objectives. Bonus payment will be made at the
time such payments are normally provided under InterVoice's
bonus program.
(c) Payment to you of the additional lump sum of $4,500.00 in lieu
of InterVoice's provision of outplacement services.
3
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 3
(d) Payment through March 31, 1997, for InterVoice's group health
insurance coverage on you and any covered dependents as in
effect on the Separation Date, to the same extent as if you
had continued as an employee. To receive this coverage, you
must make the COBRA election referred to in Paragraph 2 above,
and by your agreement hereto you authorize deduction from the
payment described in subparagraph (a) of this paragraph for
your share, if any, of the premiums.
By executing this Agreement, you acknowledge and agree that (i)
neither InterVoice nor any of the other Released Parties (as defined in
Paragraph 6 below) has any legal obligation to provide the Special Separation
Compensation to you; and (ii) your acceptance of the Special Separation
Compensation and attendant obligations as described in this Agreement is in
consideration of the promises and undertakings of InterVoice as set forth in
this Agreement.
4. Return of Property. Whether or not you accept the terms of
this Agreement, you must return to InterVoice any and all items of its
property, including without limitation company vehicles, keys, computers,
software, calculators, equipment, credit cards, forms, files, manuals,
correspondence, business records, personnel data, lists of employees, salary
and benefits information, customer lists and files, lists of suppliers and
vendors, price lists, contracts, contract information, marketing plans,
brochures, catalogs, training materials, product samples, computer tapes and
diskettes or other portable media, computer-readable files and data stored on
any hard drive or other installed device, and data processing reports, and any
and all other documents or property which you have had possession of or control
over during the course of your employment with InterVoice and which you have
not already returned. You were previously instructed to return all such
property to InterVoice by no later than the close of business on the Separation
Date, or as soon thereafter as was possible with respect to any items not then
immediately available. By your signature below, you represent that you have
complied with these requirements.
5. Use of Confidential Information. Whether or not you accept the
terms of this Agreement, you are hereby notified that (i) you are a party to an
existing agreement entitled Employee Agreement on Ideas, Inventions and
Confidential Information, your obligations under which continue in full force
and effect and undiminished in any way by this Agreement; and (ii) all of the
documents and information to which you have had access during your employment,
including but not limited to all information pertaining to any specific
business transactions in which InterVoice or any of the other Released Parties
(as defined in Paragraph 6 below) were, are, or may be involved, all
information concerning salary and benefits paid to current or former employees
of InterVoice or any of the other Released Parties, all personnel information
relating in any way to current or former employees of InterVoice or those of
any of the other Released Parties, all information pertaining in any way to
customers and suppliers of InterVoice or those
4
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 4
of any of the other Released Parties, pricing information, all financial and
budgetary information, information regarding InterVoice's sales methods and
techniques, information regarding InterVoice's training methods and techniques,
all other information specified in Paragraph 4 above, and in general, the
business and operations of InterVoice or any of the other Released Parties are
considered confidential and are not to be disseminated or disclosed by you to
any other parties, except as may be required by law or judicial process. In the
event it appears that you will be compelled by law or judicial process to
disclose such confidential information, to avoid potential liability you should
notify InterVoice's Vice President Human Resources in writing immediately upon
your receipt of a subpoena or other legal process. By your signature below, you
represent that you will comply with these requirements.
6. GENERAL RELEASE. IN CONSIDERATION OF THE SPECIAL SEPARATION
COMPENSATION DESCRIBED IN PARAGRAPH 3 ABOVE, YOU AND YOUR FAMILY MEMBERS,
HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY THE "RELEASING PARTIES") HEREBY
RELEASE, ACQUIT, AND FOREVER DISCHARGE ANY AND ALL CLAIMS AND DEMANDS OF
WHATEVER KIND OR CHARACTER, WHETHER VICARIOUS, DERIVATIVE, OR DIRECT, THAT YOU
OR THEY, INDIVIDUALLY, COLLECTIVELY, OR OTHERWISE, MAY HAVE OR ASSERT AGAINST:
(i) INTERVOICE; (ii) ANY PARENT COMPANY, SUBSIDIARY, OR AFFILIATED COMPANY OF
INTERVOICE; OR (iii) ANY OFFICER, DIRECTOR, STOCKHOLDER, FIDUCIARY, AGENT,
EMPLOYEE, REPRESENTATIVE, INSURER, ATTORNEY, OR ANY SUCCESSORS AND ASSIGNS OF
THE ENTITIES JUST NAMED (COLLECTIVELY THE "RELEASED PARTIES"). THIS GENERAL
RELEASE INCLUDES BUT IS NOT LIMITED TO ANY CLAIM OR DEMAND BASED ON ANY
FEDERAL, STATE, OR LOCAL STATUTORY OR COMMON LAW OR CONSTITUTIONAL PROVISION
THAT APPLIES OR IS ASSERTED TO APPLY, DIRECTLY OR INDIRECTLY, TO THE FORMATION,
CONTINUATION, OR TERMINATION OF YOUR EMPLOYMENT RELATIONSHIP WITH INTERVOICE.
THUS, YOU AND THE OTHER RELEASING PARTIES AGREE NOT TO MAKE ANY CLAIMS OR
DEMANDS AGAINST INTERVOICE OR ANY OF THE OTHER RELEASED PARTIES SUCH AS FOR
WRONGFUL DISCHARGE; UNLAWFUL EMPLOYMENT DISCRIMINATION ON THE BASIS OF AGE OR
ANY OTHER FORM OF UNLAWFUL EMPLOYMENT DISCRIMINATION; RETALIATION; BREACH OF
CONTRACT (EXPRESS OR IMPLIED); BREACH OF THE DUTY OF GOOD FAITH AND FAIR
DEALING; VIOLATION OF THE PUBLIC POLICY OF THE UNITED STATES, THE STATE OF
TEXAS, OR ANY OTHER STATE; INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS; TORTIOUS INTERFERENCE WITH CONTRACT; PROMISSORY ESTOPPEL; DETRIMENTAL
RELIANCE; DEFAMATION OF CHARACTER; DURESS; NEGLIGENT MISREPRESENTATION;
INTENTIONAL MISREPRESENTATION OR FRAUD; INVASION OF PRIVACY; LOSS OF
CONSORTIUM; ASSAULT; BATTERY; CONSPIRACY; BAD FAITH; NEGLIGENT HIRING,
RETENTION, OR SUPERVISION; ANY INTENTIONAL OR NEGLIGENT ACT OF PERSONAL INJURY;
ANY ALLEGED ACT OF HARASSMENT OR INTIMIDATION; OR ANY OTHER INTENTIONAL OR
NEGLIGENT TORT; OR ANY ALLEGED VIOLATION OF THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964; THE
AMERICANS WITH DISABILITIES ACT OF 1990; THE FAMILY AND MEDICAL LEAVE ACT OF
1993; THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974; THE FAIR LABOR
STANDARDS ACT; THE FAIR CREDIT REPORTING ACT; THE TEXAS COMMISSION ON HUMAN
RIGHTS ACT; AND THE TEXAS WAGE PAYMENT STATUTE.
5
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 5
THE EFFECT OF YOUR ACCEPTANCE OF THIS AGREEMENT IS TO RELEASE, ACQUIT,
AND FOREVER DISCHARGE ANY AND ALL CLAIMS AND DEMANDS OF WHATEVER KIND OR
CHARACTER THAT YOU OR ANY OF THE OTHER RELEASING PARTIES MAY NOW HAVE OR
HEREAFTER HAVE OR ASSERT AGAINST INTERVOICE OR ANY OF THE OTHER RELEASED
PARTIES FOR ANY LIABILITY, WHETHER VICARIOUS, DERIVATIVE, OR DIRECT. THIS
RELEASE INCLUDES ANY CLAIMS OR DEMANDS FOR DAMAGES (ACTUAL OR PUNITIVE), BACK
WAGES, FUTURE WAGES OR FRONT PAY, COMMISSIONS, BONUSES, SEVERANCE BENEFITS,
MEDICAL EXPENSES AND THE COSTS OF ANY COUNSELING, REINSTATEMENT OR PRIORITY
PLACEMENT, PROMOTION, ACCRUED VACATION LEAVE BENEFITS, PAST AND FUTURE MEDICAL
OR OTHER EMPLOYMENT BENEFITS (EXCEPT AS TO WHICH THERE IS EXISTING CONTRACTUAL
OR VESTED ENTITLEMENT) INCLUDING CONTRIBUTIONS TO ANY EMPLOYEE BENEFIT PLANS,
RETIREMENT BENEFITS (EXCEPT AS TO WHICH THERE IS VESTED ENTITLEMENT),
RELOCATION EXPENSES, COMPENSATORY DAMAGES, INJUNCTIVE RELIEF, LIQUIDATED
DAMAGES, PENALTIES, EQUITABLE RELIEF, ATTORNEY'S FEES, COSTS OF COURT,
DISBURSEMENTS, INTEREST, AND ANY AND ALL OTHER LOSS, EXPENSE, OR DETRIMENT OF
WHATEVER KIND OR CHARACTER, RESULTING FROM, GROWING OUT OF, CONNECTED WITH, OR
RELATED IN ANY WAY TO THE FORMATION, CONTINUATION, OR TERMINATION OF YOUR
EMPLOYMENT RELATIONSHIP WITH INTERVOICE. THIS GENERAL RELEASE APPLIES AND IS
FULLY ENFORCEABLE WITH RESPECT TO ALL RIGHTS OR CLAIMS EXISTING ON OR BEFORE
THE DATE THIS AGREEMENT IS EXECUTED BY YOU, AND DOES NOT ACT TO WAIVE ANY
RIGHTS OR CLAIMS THAT ARISE AFTER THE DATE OF EXECUTION.
7. Confidentiality, Nonprosecution, Nondisparagement, and
Cooperation.
(a) The terms of this Agreement shall be and remain confidential,
and shall not be disclosed by you to any persons other than
the Releasing Parties and your attorney and accountant or tax
return preparer if such persons have agreed to keep such
information confidential. Notwithstanding the foregoing,
either party may make any disclosures concerning the terms of
this Agreement that are required by law, including without
limitation any disclosures required under the federal
securities laws and regulations.
(b) Except as requested by InterVoice or as compelled by law or
judicial process, you will not assist, cooperate with, or
supply information of any kind to any party other than
InterVoice or its duly authorized agents or attorneys (i) in
any proceeding, investigation, or inquiry raising issues under
the Age Discrimination in Employment Act of 1967, Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities
Act of 1990, the Family and Medical Leave Act of 1993, the
Employee Retirement Income Security Act of 1974, the Fair
Labor Standards Act, the Fair Credit Reporting Act, the Texas
Commission on Human Rights Act, the Texas Wage Payment
Statute, or any other federal, state, or local law involving
the formation, continuation, or termination of your employment
relationship, or the employment of other persons, by
InterVoice or any of the
6
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 6
other Released Parties; or (ii) in any other litigation
against InterVoice or any of the other Released Parties.
(c) You will not make to any other parties any statement, oral or
written, which directly or indirectly impugns the quality or
integrity of InterVoice's or any of the other Released
Parties' business or employment practices, or any other
disparaging or derogatory remarks about InterVoice or any of
the other Released Parties, their officers, directors,
stockholders, managerial personnel, or other employees.
InterVoice shall instruct its officers not to make any
disparaging or derogatory remarks about you.
(d) You will not initiate any proceeding, investigation, or
inquiry with any governmental regulatory agency with respect
to InterVoice's products, facilities, employment practices, or
business operations.
(e) It shall not be a breach of the obligations set forth in this
Paragraph for you, your spouse, or your attorneys to state to
any person that any differences, if you believe any to exist,
between you and InterVoice have been settled or satisfactorily
resolved.
(f) You agree to cooperate fully and completely with InterVoice or
any of the other Released Parties, at their request, in all
pending and future litigation involving InterVoice or any of
the other Released Parties. This obligation includes your
providing testimony in court or upon deposition that is
truthful, accurate, and complete, according to information
known to you. If you appear as a witness in any pending or
future litigation at the request of InterVoice or any of the
other Released Parties, InterVoice agrees to reimburse you,
upon submission of substantiating documentation, for necessary
and reasonable expenses incurred by you as a result of your
testifying.
8. Agreement Not to Seek Reemployment. InterVoice and the other
Released Parties have no obligation to employ or to hire or rehire you, to
consider you for hire, or to deal with you in any respect at any location,
office, or place of business with regard to future employment or potential
employment. Accordingly, you hereby agree: (i) that you will not ever apply for
or otherwise seek employment by InterVoice or any of the other Released Parties
at any time in the future, at any location, office, or place of business, and
(ii) that your forbearance to seek future employment as just stated is purely
contractual and is in no way involuntary, discriminatory, or retaliatory.
7
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 7
9. Agreement Regarding Solicitation of Employees, Customers, and
Suppliers. For a period of one year following the Separation Date, and
thereafter to the extent provided by law, you will not directly or indirectly,
for your own account or for the benefit of any other person or party:
(a) Solicit, induce, entice, or attempt to entice any employee,
contractor, or subcontractor of InterVoice to terminate his or
her employment or contract with InterVoice (provided this
paragraph will not be construed to prevent you from having
discussions with any such person or entity concerning
employment or contracts which are not expressly prohibited by
this paragraph, including without limitation, discussions of
employment opportunities or business opportunities, to the
extent any such person or entity initiates the discussions
concerning the opportunities, and further provided that you do
not encourage the termination of employment or a contract with
InterVoice); or
(b) Solicit, induce, entice, or attempt to entice any customer or
supplier of InterVoice, including any firms that have been
customers or suppliers of InterVoice within one year preceding
the Separation Date, to terminate its business relationship
with InterVoice (provided this paragraph will not be construed
to prevent you from having discussions with any such person or
entity concerning business relationships which are not in
direct competition with InterVoice).
Should you breach this obligation, InterVoice will be entitled to
enforce the provisions of this paragraph by seeking injunctive relief in
addition to recovering any monetary damages InterVoice may sustain as a result
of such breach, and you may be required to repay the Special Separation
Compensation provided to you by this Agreement.
10. Nonadmission of Liability or Wrongdoing. This Agreement does
not in any manner constitute an admission of liability or wrongdoing on the
part of InterVoice or any of the other Released Parties, but InterVoice and the
other Released Parties expressly deny any such liability or wrongdoing; and,
except to the extent necessary to enforce this Agreement, neither this
Agreement nor any part of it may be construed, used, or admitted into evidence
in any judicial, administrative, or arbitral proceedings as an admission of any
kind by InterVoice or any of the other Released Parties.
8
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 8
11. Authority to Execute. You represent and warrant that you have
the authority to execute this Agreement on behalf of all the Releasing Parties.
You further agree to indemnify fully and hold harmless InterVoice and any of
the other Released Parties from any and all claims brought by the Releasing
Parties or derivative of your own, including the amount of any such claims
InterVoice or any of the other Released Parties are compelled to pay, and the
costs and attorney's fees incurred in defending against all such claims.
12. Governing Law and Interpretation. This Agreement and the
rights and duties of the parties under it shall be governed by and construed in
accordance with the laws of the State of Texas. If any provision of this
Agreement is held to be unenforceable, such provision shall be considered
separate, distinct, and severable from the other remaining provisions of this
Agreement, and shall not affect the validity or enforceability of such other
remaining provisions, and that, in all other respects, this Agreement shall
remain in full force and effect. If any provision of this Agreement is held to
be unenforceable as written but may be made to be enforceable by limitation
thereof, then such provision shall be enforceable to the maximum extent
permitted by applicable law. The language of all parts of this Agreement shall
in all cases be construed as a whole, according to its fair meaning, and not
strictly for or against any of the parties.
13. Breach of Agreement. Should you fail to comply with any of
your obligations as set forth in this Agreement, InterVoice will have no
obligation to pay you the Special Separation Compensation described above, and
you may be required to repay the Special Separation Compensation provided to
you by this Agreement, but all other provisions of this Agreement shall remain
in full force and effect. You may also be liable for InterVoice's damages and
its attorney's fees and expenses resulting from your breach of any provision in
this Agreement.
14. Time for Consideration of Offer, and Consultation With an
Attorney. You acknowledge that you have consulted with and been represented by
an attorney in your consideration of this Agreement, and that you have had more
than 21 days in which to consider whether you wished to accept InterVoice's
proposal.
15. Effective Date. This Agreement will become effective and
enforceable upon the expiration of seven days after your execution of it
("Effective Date"). At any time before the Effective Date of this Agreement,
you may revoke your acceptance.
16. Voluntary Agreement. You acknowledge that execution of this
Agreement is knowing and voluntary on your part, and that you have had a
reasonable time to deliberate regarding its terms.
9
Xx. Xxxxxxx X. Xxxxxxxx
January 31, 1997
Page 9
17. Entire Agreement. Except as specified herein with respect to
certain preexisting agreements, this Agreement contains and constitutes the
entire understanding and agreement between you and InterVoice as to its subject
matter, and may be modified only by a writing of contemporaneous or subsequent
date executed by both you and an authorized official of InterVoice.
If you are in agreement with the foregoing provisions, please execute
both copies of this letter in the space provided below and obtain your
attorney's signature reflecting his approval. Return one fully executed
original to Mr. Xxx Xxxxx, Vice President Human Resources, on or before
February 7, 1997, and maintain the other executed original in your files. This
letter shall then constitute a valid and binding agreement by and between
InterVoice and you, effective as of the expiration of seven days after the date
of your execution.
Sincerely,
INTERVOICE, INC.
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
President and Chief Operating Officer
ACCEPTED AND AGREED TO:
/s/ XXXXXXX X. XXXXXXXX
--------------------------------
Xxxxxxx X. Xxxxxxxx
Date Signed: 2/6/97
-------------------
APPROVED:
--------------------------------
Xxxxx X. Xxxxxx, Xx.
Attorney for Xxxxxxx X. Xxxxxxxx
